COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
KEITH WAYNE MILLER
OPINION BY
v. Record No. 2549-94-3 JUDGE SAM W. COLEMAN III
JUNE 11, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Elizabeth P. Murtagh (Office of the Public
Defender, on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Keith Wayne Miller was convicted in a bench trial of using a
firearm during the commission of rape in violation of Code
§ 18.2-53.1. 1 He was sentenced as a recidivist to a mandatory
1
Code § 18.2-53.1. Use or display of firearm in committing
felony.
It shall be unlawful for any person to use or
attempt to use any pistol, shotgun, rifle, or other
firearm or display such weapon in a threatening manner
while committing or attempting to commit murder, rape,
forcible sodomy, inanimate or animate object sexual
penetration as defined in [Code] § 18.2-67.2, robbery,
carjacking, burglary, malicious wounding as defined in
[Code] § 18.2-51, malicious bodily injury to a
law-enforcement officer as defined in [Code]
§ 18.2-51.1, aggravated malicious wounding as defined
in [Code] § 18.2-51.2, malicious wounding by mob as
defined in [Code] § 18.2-41 or abduction. Violation of
this section shall constitute a separate and distinct
felony and any person found guilty thereof shall be
sentenced to a term of imprisonment of three years for
a first conviction, and for a term of five years for a
second or subsequent conviction under the provisions of
this section. Notwithstanding any other provision of
term of five years in the penitentiary, rather than to three
years, which is the mandatory sentence for a first offender.
Miller contends that the trial court erred by sentencing him as a
recidivist because the Commonwealth did not produce a copy of the
prior conviction order at sentencing and, therefore, the evidence
was insufficient to prove that this was a second or subsequent
conviction. Alternatively, he claims that even if the evidence
at sentencing proved a prior conviction, he was not a recidivist
because a prior conviction had not been entered at the time of
the hearing in which he was adjudged guilty, and furthermore, he
was not a recidivist or second offender because the predicate
offense was committed subsequent to the charged offense. We find
Miller's claims to be without merit. Accordingly, we affirm the
trial court's order sentencing Miller to a term of five years in
the penitentiary for a second or subsequent conviction.
On September 23, 1994, the Circuit Court of Lynchburg found
the defendant guilty of several related felonies, including the
use of a firearm during the commission of rape, all of which
occurred on April 13, 1994. At arraignment, the trial judge and
defense counsel informed the defendant that the punishment for
(..continued)
law, the sentence prescribed for a violation of the
provisions of this section shall not be suspended in
whole or in part, nor shall anyone convicted hereunder
be placed on probation. Such punishment shall be
separate and apart from, and shall be made to run
consecutively with, any punishment received for the
commission of the primary felony.
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the firearm offense under Code § 18.2-53.1 is a mandatory three
year sentence that will run consecutively to any sentence imposed
for the primary offense. 2 The defendant had not been previously
convicted of using a firearm in violation of Code § 18.2-53.1 at
the time of arraignment or the bench trial of the guilt phase of
the trial. After finding Miller guilty on all charges, the court
set sentencing for November 18, 1994.
At the sentencing hearing, the probation officer testified,
and the presentence report showed, that on September 19, 1994,
four days before the bench trial for the present offense, the
Circuit Court of Amherst County had found the defendant guilty,
but had not sentenced him, of using a firearm in the commission
of rape in violation of Code § 18.2-53.1. The Amherst County
conviction is the predicate offense that the Commonwealth relies
3
on for sentencing the defendant as a recidivist. The Amherst
2
Miller does not contend that he was prejudiced or was
deprived of any right by being advised that the punishment for
the offense for which he was being tried was a mandatory three
year, rather than five year, sentence. He does not claim that he
would have requested a jury trial if he had known that the
potential sentence would be five years. Moreover, he made no
request at sentencing, and has made no claim here, that he should
have been permitted to withdraw his waiver of a jury trial for
the firearms offense. See Thomas v. Commonwealth, 218 Va. 553,
238 S.E.2d 834 (1977) (deciding when an accused may withdraw
waiver of a jury trial).
3
A guilty verdict is not a conviction until a final order of
judgment has been entered. Ramdass v. Commonwealth, 248 Va. 518,
520, 450 S.E.2d 360, 361 (1994), cert. denied, 115 S. Ct. 1800
(1995).
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County offense was committed in May 1994, after the commission of
the Lynchburg offense. On November 14, 1994, four days before
sentencing on the present offense, the Circuit Court of Amherst
County sentenced the defendant for the Amherst firearm conviction
in violation of Code § 18.2-53.1. No copy of that conviction
order was introduced into evidence at the sentencing hearing for
the present offense. However, the probation officer testified
about the defendant's conviction in Amherst County, and the
presentence report included the Amherst County conviction as part
of his criminal record.
The defendant claims, in effect, that a probation officer's
testimony and report are inadmissible hearsay when offered to
prove a prior conviction at a sentencing hearing, and that the
evidence is insufficient to prove a prior conviction absent a
copy of the conviction order. The defendant did not contend at
the sentencing hearing that the probation officer's testimony or
report were inadmissible hearsay. See Baughan v. Commonwealth,
206 Va. 28, 31, 141 S.E.2d 750, 753 (1965) (holding that hearsay
testimony that is admitted without objection may "properly be
considered by the trial court and given its natural probative
effect"). Although Code § 19.2-295.1 requires the Commonwealth
to provide a defendant with certified copies of prior conviction
orders in a bifurcated jury trial proceeding, "[a] sentencing
judge may consider hearsay contained in a probation report."
Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 471
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(1994) (en banc). Because the defendant did not object to the
probation officer's testimony concerning the prior firearm
conviction on the ground that it was inadmissible hearsay or
contend that the evidence was insufficient without a copy of the
conviction order to prove that he had a prior conviction, we will
not consider those issues for the first time on appeal. Rule
5A:18; Rule 5A:12. Furthermore, the record reveals no good cause
for the defendant's failure to object in the trial court, nor is
it necessary for us to consider the issues in order to attain
justice in the case. See Jimenez v. Commonwealth, 241 Va. 244,
249, 402 S.E.2d 678, 680 (1991); Mounce v. Commonwealth, 4 Va.
App. 433, 435-36, 357 S.E.2d 742, 744 (1987).
With respect to the defendant's contention that he cannot be
sentenced as a recidivist under Code § 18.2-53.1 where the
offense for the predicate conviction was committed after the
charged offense, our holding in Stubblefield v. Commonwealth, 10
Va. App. 343, 347, 392 S.E.2d 197, 198 (1990), controls. In
Stubblefield, we held that Code § 18.2-53.1 is a "specific,"
rather than a general, recidivist statute and, therefore, was
intended to "impose[] additional punishment for a subsequent
conviction for the same offense." Id. (first emphasis added).
"Such statutes are aimed at punishment of specific behavior, not
reform." Id. (emphasis in original). Because Code § 18.2-53.1
is concerned with punishing repeat firearm offenders, the statute
punishes for a "second or subsequent conviction" without regard
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to the dates of the convictions or the sequence in which the
offenses were committed. "Any conviction that follows a first
conviction is a subsequent conviction within the purview of Code
§ 18.2-53.1." Flythe v. Commonwealth, 221 Va. 832, 835, 275
S.E.2d 582, 584 (1981).
In Stubblefield, we held that an accused could be classified
as a "recidivist" under Code § 18.2-53.1 where multiple
convictions were rendered in a single jury trial. However, in
light of the Supreme Court's decision in Ramdass and the
enactment of Code § 19.2-295.1, which requires a separate
sentencing proceeding in felony jury trials, guilty verdicts
rendered in a single jury trial on multiple offenses are not
final convictions until the entry of the conviction order.
Therefore, requiring proof of a prior conviction at the time the
verdicts are returned would be inconsistent with the holding in
Stubblefield. Because there is no indication that the
legislature intended such a result in enacting Code § 19.2-295.1,
and because Code § 18.2-53.1 is "aimed at punishment of specific
behavior, not reform," Stubblefield, 10 Va. App. at 347, 392
S.E.2d at 198, we hold that the relevant inquiry under Code
§ 18.2-53.1 is whether, at the time of sentencing, a conviction
entered is a "second or subsequent conviction."
Here, the defendant had been previously convicted in Amherst
County of violating Code § 18.2-53.1 at the time of sentencing
for the charged offense. Therefore, the charged offense was a
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"second or subsequent conviction," and the trial court did not
err by sentencing the defendant as a "recidivist."
Affirmed.
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